So here’s an odd case for you (Ricardo Zambrano v. La Pinada): a lien claimant had paid the fee, in accordance with Labor Code section 9403.06, but failed to provide proof of such payment because the lien representative didn’t appear. The WCJ dismissed the lien, and the lien claimant petitioned for reconsideration, arguing that Code of Civil Procedure Section 473(b). Section 473(b) allows an order of dismissal to be rescinded based on the inadvertence or mistake of the party’s counsel.

Now, here’s where it gets odd: the lien representative’s claim of inadvertence comes as follows: “the hearing representative assigned to the case mistakenly failed ‘to communicate with [the lien representative] to allow them to email or fax him on the date of the hearing the proof of payment of the lien activation.”

Well, was the dismissal based on the “inadvertence, surprise, excusable neglect, or an honest mistake”? Not according to your humble blogger.

What is the inadvertence? It looks like no one made an appearance for lien claimant or the lien representative’s office to begin with. Also, what’s the excuse for not knowing the law? It’s one thing to be taken by surprise by having a party raise a last-minute argument or issue. There is NO QUESTION that a lien claimant has to show up ready to prove payment of the lien activation fee. This is an issue that cannot possibly not come up unless a dismissal is on the horizon.

This was an issue of the lien representative not being up to date on the law or disregarding the most basic calendaring function on Microsoft Outlook (or Mozilla Thunderbird). Instead of affirming the dismissal of the lien, the WCAB will now require defendant to prepare for a second hearing, although the WCAB did recommend the WCJ impose sanctions.

In any case, this opinion suggests that lien claimants may be relieved of their duties under section 4903.06(a)(4) (“If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.”) The language suggests that the legislature intended to have lien claimants make a timely payment AND provide proof of payment.

I wonder, dear readers, could the failure to pay the lien activation fee itself be “inadvertence” to trigger section 473(b)? Let’s hope not…

On several occasions, your humble blogger has gently suggested against nurturing that fear of social media, especially Facebook, and instead urged you to use it to help nab fraudsters. If a creeps can stealthily cyber-stalk ex-girlfriends and secret crushes, why can’t adjusters and defense attorneys use the same tactics to find out when our total PD applicant is developing his Mixed Marital Arts persona? We’ve seen Facebook used effectively, and Twitter has been used in much the same way.

Basically, she was submitting payroll documents from a non-existent company to qualify for wage-loss benefits (Ohio’s gap between a subsequent job and pre-injury earnings). In fact, she was posting pictures to her Facebook profile which reflected her employment at “Purrfect Paws Grooming Boutique,” and failed to report her actual wages.

It really doesn’t take that long to become adept at manipulating Facebook or Twitter to allow access to various profiles or the information that the injured worker is willingly shouting to the world. One can hardly claim that the vows and curses shouted from the top of a mountain were meant to fall everywhere except an adjuster’s ears.

So, crack open your old highschool yearbook and track down that one that got away (be prepared to explain this exercise to your significant other – any injuries sustained may or may not be compensable under your employer’s workers’ compensation policy). Once you’re able to track down this missing love, you’re probably skilled enough to check the doings of any applicant who has to brag about his or her fraud on Facebook or Twitter or any of the other social media.

Your humble blogger bids you a happy Memorial Day. To all of the veterans, and family members of, reading this humble little blog, I thank you for your service.

It appears that I cannot make the point enough (because I must often remind myself) that the issues we face in workers’ compensation are important, but they are small on the grand scale.

For those of us fortunate enough to enjoy a respite from the comp world today, I bid you enjoy your sales and barbecues, your camping trips and parties, or even your lazy, pajama-wearing, do-nothing days off. But even still, take a moment to remember why you’re not spending today reviewing Kaiser records or bill-reviewing a $600 box of tissues.

As for the rest of you unlucky souls, chained to your desk and rating schedule, still trying to get a good grasp of SB-863, let this remind you that workers’ compensation is a cruel mistress indeed.

The Department of Industrial Relations is on a roll with this week’s news releases, an earlier report citing “record-breaking results for labor law enforcement in California” having been issued to the community this week.

Apparently, Labor Commissioner Julie A. Su was excited to report that “labor law enforcement under Governor Brown in the first two years of his Administration resulted in more minimum and overtime wages found owing to California workers and more monetary penalties for illegal business practice than in any previous year in the past decade.”

Strangely, your humble blogger’s “in-box” doesn’t include a report of this administrations hot pursuit of fraudulent claim filers, of workers who harass their employers with fake workers’ compensation claims, or of the crippling effect workers’ compensation costs have on small businesses.

Times are tough enough in California, and more regulations, more compliance laws, and more experts to hire in order to stay out of the ever-growing “underground economy” is not going to bring California’s businesses back from the edge of the abyss. And looting them with fines and penalties before they have a chance to move to Texas and Arizona isn’t going to solve the problem – you’re feeding the fire, not putting it out.

Certainly some people think of evil fat-cat business tycoons, laughing at their poor workers while they light their cigars with $100 bills aboard private jets (much like your humble blogger and his growing media empire). They deserve what’s coming to them, and their poor workers are the victims.

In fact, your average violator probably has a handful of employees and is bringing home as much money as they are after trying desperately (and in vain) to comply with California’s Byzantine regulations on every venture imaginable.

Instead of driving the last nails in the coffins of small businesses and then high-fiving itself, perhaps this administration should target the elements that drive small businesses into the “underground economy” in the first place – high workers’ compensation insurance premiums (among other costs of doing business).

Here is an idea – if an employer is the victim of workers’ compensation fraud, that employer should be entitled to a California tax credit for all money that the district attorney’s office was unable (or unwilling) to recover. That total amount should include the cost of investigation, which is often paid for and conducted by the employer (many prosecutors won’t approach such a case until all the leg work has been done for them).

After all, it’s easy for the prosecutor to plea bargain fraud away by waiving restitution to the employer, and then add another “conviction” to his or her re-election campaign while leaving the employer out in the cold, with no recourse except paying more tax dollars to the same prosecutor. This way, for every dollar the prosecutors of California fail to recover for the employers, there will be one less dollar coming in next year in tax revenue.

Instead, we have self-pleased “reports” of desperate businesses being ground into the dust to the sound of thunderous applause.

A “Newsline” dated May 20, 2013, is going out to the world to tell everyone that the DWC is tired of your complaining that the panels are taking too long to issue.

So what if you need medical issues to be resolved? So what if you’re an injured worker in too much pain to work and not receiving TD based on a doctor’s report? So what if the treating physician has just added on 65 additional injuries, from sexual dysfunction to decreased eyesight following a paper-cut, too bad. You’ll have to wait.

In other news, the fire department will get to your burning house when they get to it, and that ambulance you called for? Yeah, we’ll see…

It appears that the DWC tried hiring student assistants (remember all those erroneous rejections?) and overtime pay, but that proved to be “not sustainable” so the community is now told to hold off until July 1, 2013, when the Medical Unit will not need to issue panels for medical treatment disputes.

Of course, once the Independent Medical Review process comes into effect, won’t the Medical Unit just be told to cut back on its budget because it no longer has to process the medical dispute requests?

How difficult would it be to have an automated system? If I can e-file a DOR and choose my own hearing date, why can’t I log onto the Medical Unit and request a panel? We already type in all the information for a panel request, and if an electronic panel request is premature, you can be sure that the other side is going to file a Declaration of Readiness to Proceed on the issue of which panel issued controls. And, if two panels are generated on the same day, the one in the same specialty as the treating physician would control.

Well, the DWC recently posted proposed changes to the MPN rules, and that, among other holdings, might become quickly irrelevant if the regulations are approved as proposed. The new rules, specifically regulation 9767.3(c)(5) holds that “[o]nly locations listed in the Medical Provider Network listings are considered to be approved locations under the MPN.”

But there are other changes also.

For example, MPNs will have to provide “access assistants” which will be available from 7am to 8pm Monday through Saturday to assist injured workers with finding physicians and scheduling appointments.

There is also language to reinforce that a chiropractor can only be the primary treating physician up until the 24-visit cap has been met, and then the employee must select another primary treating physician within the MPN who is not a chiropractor.

There are plenty of other changes too (about 40 pages of them!) which will have to be explored and debated in the coming days.

Employers should be wary, however – any push from “treating” physicians and applicant’s attorneys in this “open forum” period is going to go only one way. For example, your humble blogger’s sources report that renowned applicant’s attorney, Jack Cheatum, of Whey, Cheatum, and Howe, LLP, plans to introduce an amendment to the rules by which an applicant can submit a certified document that he or she spun around three times and uttered the words “Abra Cadabra Em Pee Ennus Negatus” to be allowed to treat outside of an otherwise valid MPN at the employer’s expense.

Let’s hope we still have an effective MPN system when all this is done.

There is a tremendous amount of benefit to having an employer’s representative sitting next to the defense attorney at a deposition. When the injured worker starts steering the deposition to fantasy land, an employer’s representative can provide specific questions to asks or facts to explore to build a record which would support a charge of perjury or discredit the witness in various other means. Naturally, the applicant’s attorney would much rather avoid such aid to defense counsel.

In the matter of Irene Yera v. J.C. Penney, applicant refused to attend a properly noticed deposition because she felt “intimidated” by the presence of employer’s store manager. Defendant filed a petition to compel, but the workers’ compensation Judge denied the petition, even though there was no showing of why the employee was intimidated by the store manager.

Naturally, defendant petitioned the Workers’ Compensation Appeals Board for removal, arguing that defendant was denied its right to due process.

So, dear readers, isn’t it unfair to have the applicant provide deposition testimony in the sight of someone who could immediately point out lies and inaccuracy? Wouldn’t that be “intimidating”?

This humble blogger’s beloved readers know that he is not one who likes to name names. Things happen, mistakes get made, and adverse decisions are no reason to embarrass an applicant, defendant, or attorney.

But, in cases of fraudsters and swindlers, your humble blogger does not hesitate to “make them famous” to the extent this humble blog can. The same goes for qualified medical evaluators who try to game the system to rip rob defendants and harm patients.

That being said, have you heard of Richard K. Skala, D.C. of Fremont? This chiropractor recently entered into a stipulated settlement with the Department of Industrial Relations over his… “conduct.” The allegations made included not identifying evaluation locations, overbilling, and other behavior disfavored in California.

We’ve all been there – at a restaurant, at a banana-stand, at a public restroom, and the line was ridiculously long. Maybe it was hot. Maybe it was cold. Maybe you were in a hurry. But no matter the conditions, you got in line just like everyone else and waited your turn.

Then you saw King Jerk or Princess Better-Than-Everyone-Else. He decided he wasn’t going to wait in line and just skip ahead. She decided her hurry was more important than your hurry, so she could skip over everyone else.

Workers’ compensation is just like the real world, and we have lines and rules and procedures that everyone should be following, but some people think that they’re special. In the recent en banc decision of Luis Martinez v. Ana Terrazas, that “special” someone was a lien claimant by the name of New Age Imaging, Inc.

New Age decided that it didn’t need to file its lien activation fee, as required by the fairly new Labor Code section 4903.06, and that it would instead file a petition for costs under Labor Code section 5811 (“In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.”)

In other words, there’s no lien, but just a petition for costs! Do you buy it, dear readers? Well, the commissioners of the Workers’ Compensation Appeals Board happened to be having lunch at the restaurant where New Age was trying to cut in line, and told them to get in back like everyone else!

The WCAB held that “a claim for medical-legal expenses may not be filed as a petition for costs under section 5811.” However, those lien claimants who bought into this scheme and dismissed their liens so as to file a petition for costs will still be allowed to re-file their lien so long as they pay the activation fee.

There have been a string of en banc or “significant panel” decisions recently which address the issue of 4903.06 lien activation fees. The decisions are consistent and essentially give form to the boiling resentment that the WCAB has been developing over the years as the system has been strangled by liens.

Now it’s time to pay the piper – lien claimants will have to pay the fee or get swept out of the system without any discussion. And no wiggling or wrangling or mislabeling or anything else will keep 4903.06 from striking the liens down.

What if you could purchase jail insurance? You’d pay your premium and, if you ever get sentenced to jail or prison time, the insurance policy would pay for someone to serve your time for you. That’s not going to happen, and workers’ compensation doesn’t provide that coverage either.

Some employers think that workers’ compensation is a panacea – no matter what happens to their employees, the employer is covered. That’s wrong – very wrong. Not only is that mentality incorrect, it’s also dangerous for the employees.

Workers’ compensation will cover an employer within reason – the system is meant to be blind to fault or negligence. But any time you’re working with serious machinery like this, from saws to presses to trucks and tractors, you can’t afford not to invest in proper training and safety.

Without going into the moral liability, no amount of insurance will take your place in a jail cell if an employee’s life is lost because you failed to take proper precautions. No insurance policy will be able to return a wife and mother and unborn child to their family either, and that fact will haunt any half-decent human being long after the business closes and the jail term is over.

Hopefully, this story will remind employers in California, large and small, that the insurance policy is “just in case,” and a mixture of safety and common sense is the first and best line of defense against such horrible tragedies.

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Disclaimer

The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.